Merely because an assessee makes an extraordinary profit, it would not lead to the conclusion that same was organized/arranged

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Merely because an assessee makes an extraordinary profit, it would not lead to the conclusion that same was organized/arranged

short overview: Merely because an assessee makes an extraordinary profit, it would not lead to the conclusion that same was organized/arranged for that the onus remains undischarged by AO, except for presence of suspicious circumstances, as such adjustments made by the AO scaling down the deduction under section 10AA, was, therefore, without sanction of law.

The issue concerned was about maintainability of estimation of profit of SEZ unit at 3% of the turnover by replacing 6.95% which was claimed to be actual profit of the unit eligible for deduction under section 10AA. The AO had alleged that the assessee produced more than ordinary profits that was expected to arise in eligible business. As a consequence, the benefit of deduction under section 10AA had been scaled down from Rs. 13.69 crores claimed by the assessee to Rs. 5.92 crore estimated by the AO. It was the case of the AO that both eligible and non-eligible units were engaged in similar line of business. While Cochin unit was engaged in selling of plain gold coins, the non eligible units are also engaged in selling of gold and diamond. The AO thus concluded that the assessee company had inflated the profits of its SEZ unit to avail larger deduction. AO accordingly re-allocated 20% of expenses to the SEZ unit and reduced the profitability of the SEZ unit to this extent. CIT(A) confirmed the estimation of probable profits from SEZ unit at 3% equivalent to Rs. 5,92,02,308 as against profit declared at 6.95% i.e. Rs. 13,69,95,563 on which the deduction under section 10AA was claimed by the assessee.

it is held that Merely because an assessee makes an extraordinary profit, it would not lead to the conclusion that same was organized/arranged. The onus was on AO to prove the presence of any arrangement between the parties which have resulted in extraordinary profits to the eligible unit. The AO could have, at least, brought variation in price of supply of commodity from different units on record to establish collusion/arrangement. The onus remains undischarged by AO except for presence of suspicious circumstances. Tribunal was in agreement with the case made out on behalf of the AO for re-allocation of expenses to the extent of Rs. 17.70 lakhs and therefore do not delineate with the same any further. In the light of the aforesaid decision, the AO was directed to restore the claim of deduction under section 10AA, subject to adjustment towards re-allocation of expenses to the extent of Rs. 17.70 lakhs.

Decision: Matter remanded.

Relied: Malay Sanghvi v. ITO 2017 TaxPub(DT) 0622 (Bom-HC) :(2017) 391 ITR 382 (Bom), CIT v. Schmetz India (P) Ltd. 2013 TaxPub(DT) 0229 (Bom-HC) : (2012) 254 CTR 0504 (Bom), Aquila Software Services Hyderabad (P) Ltd. v. Dy CIT 2015 TaxPub(DT) 3048 (Hyd-Trib) : (2015) 174 TTJ 813 (Hyd), ITO v. Pramukh International 2016 TaxPub(DT) 4342 (Ahd-Trib) : (2016) 47 CCH 0653 (Ahd-Trib), Digital Equipment India Ltd. v. DCIT 2006 TaxPub(DT) 0998 (Bang-Trib)  : (2006) 103 TTJ 329 (Bang) and CIT v. Delhi Press Patra Prakashan Ltd. 2013 TaxPub(DT) 1873 (Del-HC): (2013) 355 ITR 1 (Del-HC)

Referred: Deepak Verma v. CIT (2017) 80 taxmann.com 134 (P&H)

IN THE ITAT, MUMBAI BENCH

PRADIP KUMAR KEDIA, A.M. & SANDEEP GOSAIN, J.M.

SJR Commodities & Consultancies (P) Ltd. v. ITO

ITA No. 4548/Mum/2017

14 June, 2019

Appellant by: F.V. Irani, A.R.

Respondent by: S. Abhi Rama Karthikeyan, Sr. D.R.

ORDER

Pradip Kumar Kedia, A.M.

The captioned appeal has been filed at the instance of the assessee against the order of the Commissioner (Appeals)-18, Mumbai, (‘CIT(A)’ in short), dated 7-3-2017 arising in the assessment Order, dated 27-3-2014 passed by the assessing officer (AO) under section 143(3) of the Income Tax Act, 1961 (the Act) concerning assessment year 2011-12.

2. The grounds of appeal raised by Revenue read as under :–

“(1) (a) On the facts and under the circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the action of assessing officer in estimating the profit of SEZ unit at 3% of turnover on ad hoc basis instead of 6.95% which is actual profit without appreciating the fact that the accounts of SEZ are separately maintained and duly audited.

(b) On the facts and under the circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the action of assessing officer in concluding that the profitability of business of SEZ unit and non SEZ units is same, without appreciating the fact that the SEZ unit is into business of manufacturing of Gold coins whereas non SEZ unit is into trading of gold and diamond hence both the line of businesses although in Gem and Jewellery industry cannot be deemed to be same by any stretch of imagination and profitability in manufacturing is always higher.

(c) On the facts and under the circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the conclusion of the assessing officer that the profitability should be same between SEZ and non SEZ businesses as the goods from both the units are exported to common parties without appreciating the fact that different goods/products are exported. Gold coins are exported by SEZ and Jewellery and diamonds are exported by non SEZ units.

(d) On the facts and under the circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the addition made by the assessing officer in restricting the benefit of section 10A at Rs. 5.92 Crores instead of Rs. 13.69 crores on the basis of relying on some case of other assessee where even the facts are not similar. Commissioner (Appeals) has completely ignored this fact while concluding the order.

(e) On the facts and under the circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the action of assessing officer in arriving at a conclusion that the profits were inflated for SEZ units without appreciating the fact that total of export and import documents were furnished by the appellant during the assessment.

(f) On the facts and under the circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the action of assessing officer in concluding that the margin of profit in the business line of manufacturing gold coins is in the range of l% to 2% without providing any substantiations to that and ignored the audited accounts of the appellant & arrived at an ad hoc net margin of 3% of turnover which is bad in law

(g) On the facts and under the circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming order of the assessing officer, who has relied on the judgment of Mumbai ITAT in case of Shri Malay N Sanghvi (6265/Mum/2012-13), which is subsequently remanded back by Hon’ble Mumbai High Court. (Appeal No, 1342 of 2014)

(2) The Commissioner (Appeals) erred in confirming the action of assessing officer without appreciating that the assessing officer has not substantiated that there is an arrangement between the assessee and the foreign buyers to whom plain gold jewellery/coins has been exported and that the so called arrangement has resulted in extra ordinary profit to the assessee.

(3) The Commissioner (Appeals) erred in confirming the action of assessing officer without appreciating the fact that the assessing officer has alleged that there is no wastage shown by the assessee whereas all the export invoices showed wastages, which was within the permissible limits although copy of all the export invoices were submitted to the assessing officer during the Assessment proceedings.

(4) On the facts and under the circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the action of assessing officer in in allocating the loss on option premium of Rs. 85, iTh-to Cochin SEZ unit on the basis of turnover, without appreciating the fact that option premium was paid against hedging of imports of diamonds which is the trading item of non SEZ business of the assessee. Assessing officer and Commissioner (Appeals) ignored the bank documents and import invoices submitted which proved that the hedging was made for such non SEZ transactions only.”

3. Briefly stated, the assessee is stated to be engaged in the business of manufacturing of plain gold jewellery/coins and trading in gold and diamond. The return filed by the assessee for assessment year 2011-12 was subjected to scrutiny assessment. In the course of scrutiny assessment, the assessing officer noted that the assessee during the year started the manufacturing unit at Cochin which is located in Special Economic Zone (SEZ). The assessee has another non SEZ units at Surat & Mumbai as well. The assessee claimed deduction under section10AA of the Act amounting to Rs. 13,69,95,563 for the assessment year 2011-12 out of profits of SEZ unit at Cochin. It was claimed that the assessee is engaged in manufacturing activity at Cochin SEZ where gold coins and plain gold jewellery are manufactured from gold bars. The Surat and Mumbai Units on the other hand are engaged in mere trading of gold and diamond. The assessing officer however alleged a similarity in the nature of business of SEZ unit and non SEZ unit and observed that there is substantial variation in net profit ratio between the SEZ and non SEZ units. The assessing officer thus referred to the provisions of section 10AA(9) read with the provisions of section 80IA(8) and 80IA(10) of the Act to hold that the assessee has reported extraordinary profits from Cochin SEZ unit to avail wrongful and excessive deduction under section 10AA of the Act. The assessing officer accordingly determined the profits of SEZ unit at 3% of the turnover on an estimated basis, which was worked out to Rs. 5,92,02,308 and consequently the deduction under section 10AA of the Act was scaled down from Rs. 13.69 Crores to Rs. 5.92 Crores. While doing so, the assessing officer inter alia observed that the business model of SEZ and non SEZ units are similar and the supply/sale of goods from SEZ units of the assessee company are to be common customers and hence the profitability should also be in the near vicinity. The assessing officer thus concluded that the assessee company has inflated the profits of its SEZ unit to avail larger deduction.

4. The assessing officer inter alia observed that the assessee has claimed expenditure towards salary, bank charges, legal and professional expenses and repair & maintenance expenses in its non SEZ unit whereas such expenditures were incurred in overall interest of the company including SEZ units. The assessing officer accordingly re-allocated 20% of such expenses aggregating to Rs. 17,70,848 to the SEZ unit and reduced the profitability of the SEZ unit to this extent.

5. The assessing officer further allocated the loss arising on payment of option premium to SEZ unit in the ratio of turnover and consequently a proportionate loss of Rs. 85,98,115 was apportioned to SEZ unit (Cochin) and disallowed the proportionate loss claimed by non SEZ unit to this extent.

6. Aggrieved by the reduction in the deduction of claim under section 10AA of the Act, disallowance of loss of option premium towards buying and selling of US currency allocated to Cochin unit (Rs. 85,98,116) and disallowance on account of expenses proportionately allocated to Cochin SEZ (Rs. 17,70,848), the assessee preferred appeal before the Commissioner (Appeals).

7. The Commissioner (Appeals) confirmed the estimation of probable profits from SEZ unit at 3% equivalent to Rs. 5,92,02,308 as against profit declared at 6.95% i.e. Rs. 13,69,95,563 on which the deduction under section 10AA of the Act was claimed by the assessee. Similarly, the Commissioner (Appeals) refused to interfere with the proportionate disallowance of Rs. 85,98,116 being loss of option premium on buying and selling US currency allocated to SEZ units. The Commissioner (Appeals) however agreed with the alternative contention of the assessee that where gross profit for SEZ unit has been estimated (at 3%) separate disallowance of Rs. 17,70,848 is not called for by way of re-allocation of expenses over and above the estimations so made. The Commissioner (Appeals) accordingly deleted the aforesaid disallowance towards expenses allocated to SEZ unit. The relevant operative paras of the order of the Commissioner (Appeals) addressing various issues is reproduced hereunder:

“Ground No. 1.

Since Ground 1a to 1f are related to common issues, the same are adjudicated together as follows:

Under these ground of appeal, the appellant has agitated disallowance of Rs. 13,69,95,563 under section 10AA in respect of SEZ unit. The assessing officer has observed that the appellant is engaged in the business of manufacturing and trading in gold and diamonds. During the year under appeal the appellant combines a manufacturing unit at Cochin located in SEZ on which deduction under section 10AA was claimed to the tune of Rs. 13,69,95,563.

The assessing officer further observed that the appellant has got non-SEZ unit at Mumbai and Surat. On making the inquiries the assessing officer found that the appellant had offered very high net profit in respect of SEZ unit at Cochin as compared to net profit of non-SEZ unit at Surat and Mumbai taken as combined. The assessing officer also observed that the appellants unit at Cochin sold plain Gold coins to different parties in UAE. As per the assessing officer the appellant also exported diamonds from its non-SEZ unit to the same party of UAE. Accordingly the assessing officer was of the opinion that the items dealt with by the SEZ and non-SEZ units of the appellant are quite similar in nature. Consequently the assessing officer invoke the provision of section 10AA(9) read with section 801A(8) and 801A(10). After considering the submissions of the appellant the assessing officer was not convinced with the extraordinary profits of SEZ units vis-â-vis meagre profit/loss of non SEZ units. The assessing officer also observed that huge administrative and other expenses were claimed by the appellant against the income of non-SEZ unit as compared to meagre expenses in respect of profit of SEZ units.

The assessing officer therefore held that the profit of SEZ units were intentionally inflated so as to claim deduction under section 10AA. Accordingly the assessing officer estimated profits of SEZ units (3% amounting to Rs. 5,92,02,308 (3% of Rs. 1,97,34,10,280). Thereafter the assessing officer granted the deduction under section 10AA only to the tune of Rs. 5,92,02,308 and disallowed the deduction under section 10AA claimed by the appellant of Rs. 13,69,95,563. On the other hand the appellant strongly contended that the said disallowance made by the assessing officer is uncalled for because the parties to whom the sale is made by the appellant in UAE are not related, transactions. The appellant also pointed out that the allegation of extra profits is not based on correct appreciations of facts. The appellant also drew my attention to the fact that SEZ unit does not require much processing and therefore yielded low profit margin. The appellant also stressed that the business at SEZ entailed little value addition. Therefore the business of the appellant at SEZ and non-SEZ unit was not comparable. I have carefully considered the rival submission and find that the invocation of provision of section 801A(10) read with section 10AA by the assessing officer is quite tenable in law because the assessing officer is at liberty to check wherever the tax free SEZ unit is shown to have generated abnormal profits. This provision is a check against misuse of deduction provision by charging disproportionate expenses in non-SEZ units and showing loss/meagre profits therein. I also find that the estimation of profit made by the assessing officer is reasonable and on sound footing. The assessing officer has correctly found that excessive profits were offered in SEZ units as compared to loss/meagre profit in non-SEZ units. I also find that mere maintenance of separate books of accounts cannot be held to be determinative of true and correct profits of either units. Once the differential profits were pointed by the assessing officer the onus pnhim was – duly discharged. Whereas thereafter mere denial of such differential profit by itself does not absolve the appellant of rebutting allegation of assessing officer. I also find that the parties in UAE might not be related to the appellant. But at the same time differential profit worked out by the appellant remained inadequately rebutted at the end of the appellant. Infect the provision of section 801A(10) clearly empowers the assessing officer to rework and deduce the correct profit attributable to SEZ AND non SEZ units under such circumstances. I am therefore of the considered opinion that the claim of the deduction worked out by the assessing officer restricting the same to Rs. 5,92,02,308 instead of Rs. 13,69,95,563 is correct and deserves to be upheld. This ground of appeal is treated as dismissed.

Ground No. 2

Under these ground of appeal, the appellant has agitated disallowance of Rs. 85,98,116 being loss on option premium on buying and selling US currency allocated to SEZ units. The assessing officer has disallowed the same by holding that the appellant wrongly claimed the same against non-SEZ unit. On perusal of the assessment order it is seen that the assessing officer found documents of ICICI bank in which no where it was mentioned that the said premium was paid only in respect of hedging transaction done for diamond trade in SEZ unit. The assessing officer also observed that the appellant failed to prove nexus between hedging of US currency with the business of non-SEZ unit. It is further seen that appellant unit at SEZ also imported certain goods, therefore the assessing officer observed that this loss was wrongly attributed by the appellant to non-SEZ unit. Finally the assessing officer reworked the said loss on pro-rata basis between SEZ and non-SEZ unit on the basis of the criteria of total turnover vis-â-vis turnover of SEZ and non-SEZ unit. On the other hand the appellant contended before me that te assessing officer wrongly reallocated the said loss because the same was pertaining only to non-SEZ units. I have carefully considered rival submission and find that the contention of the assessing officer in reallocating then said los between two units is based on the criteria of turnover of each unit vis-à-vis the turnover of the appellant as a whole. I find strength in the contention of the assessing officer that the treatment given by the appellant of the attributing whole loss to non-SEZ unit is erroneous. I have therefore no hesitation in upholding the disallowance made by the assessing officer amounting to Rs. 85,98,116 by recasting and reallocating the said loss between two units. Accordingly ground no 2 is dismissed.

Ground No. 3

Under these ground of appeal, the appellant has agitated disallowance of Rs. 17,70,848 on account of for expense allocated to SEZ unit at Cochin. On perusal of the assessment order I find that the assessing officer has reallocated 20% of salary, bank charges, legal fees and repairs and maintenance by reworking the same to SEZ unit and reducing the same from non SEZ unit. On the other hand I find that the appellant has strongly contended that once the assessing officer has made addition to the gross profit no further addition can be made on account various expenses as is done by the assessing officer. I have carefully considered the rival submission and find that there is substantial strength in the argument of the appellant that after estimating the gross profit and reallocating expenses in forgoing ground 1& 2, the assessing officer could not have made further disallowance of expenses which tantamount double additions due to the same facts. I am t1herefore of the considered opinion that disallowance of Rs. 17,70,848 deserves to be deleted. I therefore direct the assessing officer to delete the same and grant relief. Accordingly ground no 3 treated as allowed.”

8. Aggrieved by the order of the Commissioner (Appeals), the assessee preferred the appeal before the Tribunal.

9. The learned Counsel for the assessee submitted at the outset that the assessing officer committed gross error on facts as well as in law in estimating the profits of SEZ unit at 3% of turnover arbitrarily as against the actual profits declared at 6.95% without appreciating the fact that the accounts of SEZ unit are separately maintained and duly audited. The learned counsel submitted that the separate book results of SEZ unit and non SEZ units cannot be disturbed without rejection of books of accounts and without pointing out specific defects. The learned AR also emphasized that the conditions specified under section 80IA(8) read with section 80IA(10) of the Act has also not been complied with to enable the Revenue to depart from the profits declared by the assessee and reduce it artificially without any tangible premise.

9.1 Adverting further, the learned counsel referred to section 10AA of the Act and pointed out that as per sub-clause (9) thereof, sub-section (8) & sub-section (10) of section 80IA of the Act shall apply to be eligible under section 10AA of the Act. The learned AR thereafter adverted to sub-section (8) of section 80IA of the Act and submitted that section 80IA(8) of the Act would come into play only where any goods/services held for the purposes of eligible business (SEZ business) are transferred to any other business carried on by the assessee. The learned AR submitted that the assessee in the instant case has not transferred any such goods/services to other business at the first instance and therefore the condition precedent for applicability of section 80IA(8) of the Act are clearly not met. The learned AR accordingly submitted that he is not proposing to go into the other conditions of market value of such goods/services in view of the inapplicability of section 80IA(8) of the Act at the threshold.

9.2 Adverting to the section 80IA(10) of the Act, the learned AR submitted that the aforesaid subsection is not triggered either, in view of non-fulfillment of substantive conditions specified therein. It was contended that section 80IA(10) of the Act would apply only where more than ordinary profits are produced in the eligible business owing to the close connection between the assessee carrying on the eligible business (to which section 10AA of the Act applies) and any other person or for any other reason and the course of business between them is so arranged which gives rise to extraordinary profits in the business transacted between them. The learned counsel in this context submitted that firstly, there is no business transacted between eligible unit and non-eligible unit and secondly, the business transaction, if any between two concerns the same person i.e. assessee company and not to an outsider. Therefore, the alleged extraordinary profit arising in the SEZ unit qua non SEZ unit would not fall within the purview of section 80IA(10) of the Act. The learned counsel emphasized that mere reason of high profit generated by eligible unit as alleged by the Revenue qua non-eligible unit engaged in a very different business structure as well as product would not itself be capable to penalizing the efficient working of SEZ unit as held in several decisions. The learned AR thereafter propagated that department must show the business between the assessee and other is not only closely connected person but also is ‘so arranged’ that business transacted by them produces more than ordinary profits to the assessee. Such ingredients are missing in the instant case and no arrangement has been established by the Revenue in the instant case and accordingly the Revenue was not justified in invoking the provisions of section 80IA(10) of the Act.

9.3 Augmenting its case, the learned AR heavily relied upon the decision of the Hon’ble Bombay High Court in the case of Malay Sanghvi v. ITO (2017) 391 ITR 382 (Bom) : 2017 TaxPub(DT) 0622 (Bom-HC) wherein the claim of deduction under section 80IB of the Act was held to be allowed without any restriction on appropriate application of section 80IA(10) of the Act in view of inability of the Revenue to place any evidence to prove that there was any arrangement between assessee unit and his wife’s unit which resulted in inflated profits to the eligible unit of the assessee.

The learned AR also referred to the decision of the Hon’ble Bombay High Court in CIT v. Schmetz India (P) Ltd. (2012) 254 CTR 0504 (Bom) : 2013 TaxPub(DT) 0229 (Bom-HC) for the proposition that abnormal or extraordinary profits ipso facto cannot lead to the inference of an arrangement between the parties. The learned AR also referred to the decision of the co ordinate bench in Aquila Software Services Hyderabad (P) Ltd. v. Dy CIT (2015) 174 TTJ 813 (Hyd) : 2015 TaxPub(DT) 3048 (Hyd-Trib), ITO v. Pramukh International (2016) 47 CCH 0653 (Ahd-Trib.) : 2016 TaxPub(DT) 4342 (Ahd-Trib) and Digital Equipment India Ltd. v. DCIT (2006) 103 TTJ 329 (Bang) : 2006 TaxPub(DT) 0998 (Bang-Trib) to buttress its case for in capacity of section 80IA(10) of the Act to enable the Revenue to re-compute the profits of eligible unit in the instant case.

9.4 The learned AR thereafter referred to the assessment order on facts and submitted that the allegations labeled by the assessing officer to come to the adverse conclusion are fundamentally erroneous. The learned AR referred to page nos. 2 & 3 of the assessment order and submitted that the assessing officer has claimed that the business of SEZ unit and domestic unit are ‘more or less’ the same and similarly, the products of the two units are more or less the same. The learned AR quipped that the SEZ unit is engaged in manufacturing activity while the domestic unit is engaged in trading of gold jewellery and diamonds and therefore, the business model and product are different. The profits of manufacturing item would ordinarily bring higher profits. Similarly, it was submitted in rebuttal to the observations of the assessing officer that sales were made by the SEZ unit as well as the domestic unit to the same parties, is of no consequence. It was submitted that the sales by the SEZ unit are totally unrelated parties and therefore in the absence of any close connection, section 80IA(10) of the Act has no applicability. As regards the allegation of absence of wastage, the learned AR submitted that the wastage has been shown in the invoice itself which was produced before the assessing officer and there is no inflation of profits by SEZ unit on this count either. The learned AR also pointed out that sales to related parties by non SEZ units is only Rs. 20 Crore as against Rs. 130 Crore incorrectly observed by the assessing officer out of total sales of Rs. 165 Crores. The learned AR thus submitted that the factual premises adopted by the assessing officer to establish close connection itself are wholly incorrect. The learned AR thus submitted that in the absence of any ‘close connection’ between the parties to whom the products have been sold and in the absence of any ‘arrangement’ successfully demonstrated by the Revenue whereby business transacted between them yielded more than ordinary profits to eligible unit of assessee, the adjustments permissible under section 80IA(10) of the Act for reduction of eligible claim under section 10AA of the Act is not tenable at all.

9.5 The learned AR further added that the assessee had declared a reasonable profit of 6.95% of turnover which cannot be visualized as extraordinary profit. The learned AR further questioned the wisdom of the assessing officer to estimate profit at 3% of the turnover without showing any cogent basis. The learned AR thereafter submitted that the books of accounts for eligible and non-eligible accounts were maintained separately and no defect was found per se in the books. The books of accounts have not been rejected and therefore the book results of eligible SEZ unit ought to have been accepted as declared. The learned AR accordingly urged for reversal of estimating of profits of eligible unit by assessing officer for the purposes of quantification of deduction under section 10AA of the Act.

10. The learned DR, on the other hand, submitted that the Cochin unit being entitled for deduction under section 10AA of the Act, the assessee has artificially inflated the profits of the eligible unit and consequently, the Revenue was entitled to invoke the deterrence provided under section 80IA(8)/80IA(10) of the Act and consequently, entitled to scale down the eligible deduction based on a reasonable and fair estimate. Placing reliance upon the order of the assessing officer and Commissioner (Appeals), the learned DR observed that the artificial distinction between the business model of SEZ and non SEZ unit is an eyewash. A conversion of gold bar into gold coin cannot said to be manufacturing activity per se. The eligible as well non-eligible units are engaged broadly in the same line of business and supply are also made to the similar customers and therefore it is for the assessee to explain the vast difference between the profitability of the eligible unit vis-à-vis non eligible unit. The learned DR referred to the decision of Punjab & Haryana High Court in the case of Deepak Verma v. CIT (2017) 80 taxmann.com 134 (P&H) for the proposition that mandate of section 80IA(10) of the Act is required to be applied in the similar circumstances. As regards, proportionate disallowance of option premium, the learned DR relied upon the orders of the lower authorities and also submitted in the similar vain that re-allocation of expenditure to the extent of Rs. 17,70,848 to Cochin SEZ requires to be retained without prejudice to the main argument towards scaling down of eligible profit for deduction to Rs. 5.92 Crore.

11. We have carefully considered the rival submissions.

11.1 The first issue concerns maintainability of estimation of profit of SEZ unit at 3% of the turnover by replacing 6.95% which is claimed to be actual profit of the unit eligible for deduction under section 10AA of the Act. The assessing officer has alleged that the assessee produced more than ordinary profits that is expected to arise in eligible business. As a consequence, the benefit of deduction under section 10AA of the Act has been scaled down from Rs. 13.69 Crores claimed by the assessee to Rs. 5.92 Crore estimated by the assessing officer. On the basis of the factual data, it is the case of the assessing officer that the eligible unit in SEZ at Cochin has yielded net profit of Rs. 13,69,95,563 on a turnover of Rs. 197.34 Crore which works out to 6.95% of the turnover which when compared with non SEZ units at Mumbai and Surat gives an impression of yielding extraordinary profits in eligible unit. It is the case of the assessing officer that both eligible and non eligible units are engaged in similar line of business. While Cochin unit is engaged in selling of plain gold coins, the non eligible units are also engaged in selling of gold and diamond. The parties to whom the aforesaid commodities are supplied from different units are also the same. It is also the case of the assessing officer that Cochin unit is merely engaged in conversion of gold bar to gold coin and therefore hardly any manufacturing activity is involved which is also proved by meager manufacturing expenses in few thousands. While the Cochin unit where the deduction is available under section 10AA of the Act and consequently the profit is not taxable, the assessee has declared a whopping profit of Rs. 13.69 Crores on a turnover of Rs. 197.34 Crores, the Mumbai & Surat units (non eligible units) on the other hand have declared a loss of Rs. 66.06 Lakhs on a turnover of Rs. 165.42 Crores despite similarity in business model. It is thus the case of the assessing officer that in view of similar nature of business of SEZ unit and non SEZ unit, substantial variation in the net profit ratio requires to be tested under the provisions of section 80IA(8) and 80IA(10) of the Act owing to the provisions of section 10AA(9) of the Act in terms of which the assessee would be eligible for deduction under section 10AA of the Act only to the extent of ordinary profits from the SEZ unit. While holding the profits arising from SEZ unit at Cochin to be extraordinary vis-à-vis non SEZ unit, it is also the case of the assessing officer that both units have supplied goods to the same set of customers and one of the customer M/s. Suraj Diamond Industries Pvt. Ltd. is an associate company of the assessee. It is also alleged that the assessee has claimed meager expenses in respect of its units at SEZ and inflated the profits. This apart, it is further case of the assessing officer that the assessee had made an arrangement whereby it shifted the profit from non SEZ units on account of sale to associated parties namely M/s. Suraj Diamond Industries Pvt. Ltd. and two other parties in Dubai and generated extraordinary profits from sale of goods from its Cochin SEZ unit from supply to the similar parties. It is the case of the assessing officer that the manufacture at SEZ unit is simply a process for conversion of gold bar into gold coins which does not require any value addition to the final product and therefore would entail low profit margins of 1% to 2% as against profit of 6.95% shown by the assessee. The assessing officer further claimed that the assessee has not shown any wastage of gold in SEZ unit which is inevitable and thereby profits have further gone upward.

11.2 The assessee, on the other hand, has rebutted the basis of the assessing officer and submitted that supply to associate company M/s. Suraj Diamond Industries Pvt. Ltd. is only Rs. 20 Crores out of Rs. 165 Crores of non SEZ unit (wrongly mentioned to be Rs. 130 Crores by the assessing officer) and therefore supply to the associate company is meager. It is further case of the assessee that Cochin SEZ is engaged in manufacturing activities whereas non SEZ segment has done only trading business and therefore disparity in profit margins are bound to occur. The Cochin SEZ has exported the manufactured goods to unrelated parties and therefore there is clear absence of any possibility towards ‘arrangement’ for declaring extraordinary profit. It is also the case of the assessee that neither section 80IA(8) is applicable nor section 80IA(10) is applicable to the facts of the case and therefore, adjustment to the eligible profit under section 10AA of the Act is without authority of law. It is also the case of the assessee that the assessing officer could not have estimated profit @ 3% under the normal provisions in the absence of rejection of books accounts under section 145(3) of the Act and in the absence of any specific defects pointed out in the books.

11.3 At this stage, we observe that the profits eligible for deduction under section10AA of the Act can suitably be reduced by the assessing officer where the provisions of section 80IA(8) or 80IA(10) of the Act found to be attracted. At this juncture, we refer to sub-section (8) and sub-section (10) to section 80IA of the Act to which the reference has been made under section 10AA(9) of the Act. It is the case of the assessee that it has neither transferred any goods or services held for the purpose of eligible business to any other business carried on by the assessee nor has transferred any goods or service held for the purpose of any other business carried on by the assessee to the eligible business. The assessing officer has not brought any material on record to prove so. In the light of such fact situation, we hold that the conditions for applicability of sub-section (8) to section 80IA of the Act are clearly not met.

11.4 We now advert to section 80IA(10) of the Act to find out as to whether the assessing officer was empowered to make adjustments to the eligible profit claimed under section 10A of the Act on the grounds of extraordinary profits. As noticed, it is the case of the assessing officer that assessee has indulged in arrangement whereby the profits of non eligible units have been shifted to eligible unit through the conduit of same set of customers and related parties. The assessing officer has accordingly alleged that assessee has made an ‘arrangement’ whereby it did not make any profit from non SEZ unit for supply of similar commodity while has generated extraordinary profits in SEZ units in the similar circumstances. In this context, we take note of the plea on behalf of the assessee that there must be a ‘close connection’ between the assessee carrying on eligible business and the other person i.e. its customers in the instant case for section 80IA(10) of the Act to come into play. The assessee has pointed out that Cochin SEZ has exported goods to unrelated parties and therefore there is total absence of any close connection contemplated in the aforesaid provision and consequently no arrangement can be inferred. The Hon’ble Bombay High Court in the case of Malay Sanghvi (supra) relied upon by the assessee has observed that the test of common customers of eligible unit and non eligible unit by itself would not indicate transfer of profits to eligible units in the absence of some arrangement. Pertinent here to say, the observations made by assessing officer towards absence of profits as non-eligible unit qua eligible unit engaged in similar business do raise strong suspicion. However, such circumstances cannot in our view, lead to inference of presence of ‘arrangement’ in the absence of any objective material. The arrangement demonstrated by the assessing officer by circumstantial inference is obscure. The assessing officer has primarily compared the profits of the two units and has inferred the presence of arrangements which to our mind would not fulfill the objective requirement of law without anything more. Similar view has been taken by the co-ordinate bench in Aquila Software Services Hyderabad (P) Ltd. (supra) and Pramukh International (supra). The Hon’ble Delhi High Court in the case of CIT v. Delhi Press Patra Prakashan Ltd. (2013) 355 ITR 1 (Delhi HC) : 2013 TaxPub(DT) 1873 (Del-HC) has emphasized on presence of justifiable reasons for invoking section 80IA(8), (9) & (10). The Hon’ble Bombay High Court in Schmetz India (P) Ltd. (supra) has also observed that merely because an assessee makes an extraordinary profit, it would not lead to the conclusion that same was organized/arranged. The onus is on assessing officer to prove the presence of any arrangement between the parties which have resulted in extraordinary profits to the eligible unit. The assessing officer could have, at least, brought variation in price of supply of commodity from different units on record to establish collusion/arrangement. The onus remains undischarged except for presence of suspicious circumstances.

11.5 We have perused the decision rendered by Hon’ble Punjab & Haryana High Court in the case of Deepak Verma (supra) relied upon on behalf of the Revenue. The aforesaid case relates to re-allocation of expenses between eligible unit and non eligible unit. We agree with the case made out on behalf of the assessing officer for re-allocation of expenses to the extent of Rs. 17.70 Lakhs and therefore do not delineate with the same any further.

11.6 Therefore, in the light of factual position and applicable law as interpreted by the judicial fiats, we are of the view that section 80IA(8) and 80IA(10) of the Act has not applicability to the facts of the Case. Therefore, the adjustments made by the assessing officer scaling down the deduction under section 10AA of the Act, is without sanction of law.

The order of the Commissioner (Appeals) is accordingly set aside. At this stage, we however also notice that the assessing officer had made re-allocation of expenditure to Rs. 17,70,848 to SEZ unit on account of common expenses debited in non SEZ unit on account of salary, bank charges, legal and professional fees and repair & maintenance fees etc. The Commissioner (Appeals) has granted relief towards this adjustment for the reason that once the adjustment has been made by applying net profit rate of 3%, no separate re-allocation would be necessary. However, once the regular profits as declared for eligible unit is restored, the re-allocation of expenses relatable to eligible unit would be necessary. This aspect was confronted to the assessee in the course of hearing. It was fairly conceded on behalf of the assessee that it does not seek to press the aforesaid re-allocation on restoring the claim of deduction of the assessee. In the light of the aforesaid decision, the assessing officer directed to restore the claim of deduction under section 10AA of the Act subject to adjustment towards re-allocation of expenses to the extent of Rs. 17.70 Lakhs.

11.7 Accordingly, the issue concerning deduction of expenses under section 10AA of the Act is allowed in part.

12. Second issue relates to allocation of loss towards option premium of Rs. 85,98,116 to Cochin unit on the basis of turnover. It is the case of the assessee that the aforesaid loss of option premium has resulted from buying and selling of US currency in respect of hedging transaction done for diamond trade attributable to non SEZ unit. It is the case of the Revenue on the other hand that the assessee has failed to demonstrate that the aforesaid premium was paid only in respect of non SEZ unit. The assessee has failed to prove nexus between hedging of US currency with the diamond business to non SEZ unit.

12.1 The aforesaid issue requires factual analysis. The assessing officer as well as the Commissioner (Appeals) has given the concurrent findings that assessee has failed to demonstrate the nexus between loss and non SEZ unit. The assessee, on the other hand has attempted to contend before us that the option premium was solely and exclusively incurred for diamond business relatable to non SEZ unit and therefore loss has been rightly claimed against the profits of non SEZ unit. The details of supply of diamond from non-eligible unit and its relation to option premium would be necessary to appreciate the facts in perspective. In the absence of complete documentation in this regard, it will be difficult for us to give a categorical findings of fact on the issue. We therefore consider it expedient to restore the matter back to the file of assessing officer for de novo examination. It will be open for the assessee to satisfy the assessing officer with documentary evidences towards its deductibility from the profits of non SEZ units. Needless to say, reasonable opportunity shall be given by the assessing officer to the assessee in this regard while passing the order in accordance with law.

12.2 In the result, second issue raised by the assessee is allowed for statistical purposes.

13. In the result, appeal of the assessee is partly allowed.

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